By Rajan Philips –

Rajan Philips

Depending on whose translation you look at, there is an interesting line in Plato’s Republic (Book VIII) where Socrates tells his pupils that in the ideal City State a citizen can walk into a “supermarket of constitutions” and pick whatever pleases her or him.  The UNP’s marketing of its constitutional wares brings to mind not so much the emporium that Socrates had in mind but Colombo’s old Panchikawatta, the minefield of cannibalized machine and metal parts.  The grand old party has pulled spare parts from every constitution and every constitutional proposal we know and has assembled a badly mangled contraption.  The UNP’s proposals give options to buyers, but not the one option as has been duly noted, that would please many buyers, namely the option to change the UNP’s own constitution and its barnacle of a leadership.

UNP’s marketing seems to have had an unintended effect.  No one other than the Party leader has said anything positively serious about the new proposal.  In fact, the proposals have received more derision than serious consideration.  The main effect has been to trigger speculations about candidates for the next presidential election.  Potential opposition candidates include former President Chandrika Kumaratunga, social justice advocate Maduluwawe Sobitha Thero, former Chief Justice Shirani Bandaranaike, and of course the UNP CEO and Leader of the Opposition Ranil Wickremasinghe.  The incumbent is automatically assumed to be in the race thanks to the 18^th Amendment that allows endless reruns.

As the next election is not due anytime soon, early speculations about candidates are a sign of regime fatigue if not a desire for regime change.  On the other hand, the long list of opposition candidates with no clear front runner is itself a symptom of disorganized opposition, pathetic complement to a misfiring government.  To extend the Panchikawtta analogy, there are quite a few vendors of constitutional spare parts making their pitch to the people.  But what are on offer for sale are not the ideal.  The vendors are also of varying credibility.

As if not to be outdone by the UNP’s marketing and the speculation about the return of Chandrika Kumaratunga to the fray, the government has suddenly proposed an amendment to the Thirteenth Amendment ahead of the Northern Provincial Council (NPC) election.  There has been much sucking and blowing going on within the UPFA for quite a while on the Thirteenth Amendment.  With the President pretending to be seeing no evil, hearing no evil and speaking no evil on 13A, others such as Gotabaya Rajapaksa, Champika Ranawaka and Wimal Weerawansa, the anti-13A triumvirate, have been going around denouncing 13A and demanding its wholesale repeal and cancellation of elections to the Northern Provincial Council.

However, a fortnight ago on May 23, the President let it be known through his spokesman for this occasion Anura Priyadarshana Yapa, the Minister for Petroleum Industries, that the NPC elections will be held in September and that any changes to 13A could only come after a broad public consultation.  But the announcement did not deter the triumvirate from continuing their campaign against 13A.  In the last few days, the government has started proposing two significant changes to 13A rather than its wholesale removal.

13 A mischief: the new communal avatar

At present, the Constitution under 13A requires consent by all Provinces before the central government can make legislative changes to the Provincial List of Powers by a simple majority in parliament.  Where unanimous Provincial consent is not forthcoming, the Constitution requires a two-thirds majority in parliament.  The government is now proposing that the central government could make changes to the Provincial List of Powers by a simple majority in parliament if there is support from a majority of the Provinces, rather than consent by all the Provinces.  The second change that is being proposed is to disallow two or more provinces coming together to form a single administrative unit.

The apparent reason for the first change is the experience over the Divi Neguma Bill, when the Supreme Court under Chief Justice Shirani Bandaranayake ruled that the Bill in its original form required unanimous Provincial consent.  If it was not bad enough that the government bullyingly impeached Shirani Bandaranayake for checkmating the Divi Neguma Bill, it seems to be doing worse now by reportedly involving the new Chief Justice in providing advice on the proposed new changes.  The process of government is no longer one of checks and balances based on a separation of powers, but perks and paybacks based on the presidential concentration of powers.

It is political paranoia that is the driving force behind the two changes rather than political wisdom or practical consideration.  Needless to say, political paranoia leaves no room for any consideration about the so called national reconciliation.  It might be shocking but not surprising that these changes are being proposed on the eve of the NPC election, the first to be held after the Provincial Council system came into effect.  At one level, the Rajapaksa regime is clearly not prepared to accept the situation of one of the nine Provincial Councils being governed by a party other than itself.  At another level, the regime seems determined not to pursue a postwar political solution with the Tamils and the Muslims but to vigorously create a new avatar of the old problem.  As a perceptive Sinhalese commentator has noted, the proposed changes to 13A are the new ‘Sinhala Only’ of the twenty first century.

Significantly and at long last, the co-opted Tamil and Muslim constituents of the UPFA, and the no less co-opted Old Left constituents, seem to have mustered enough courage to push back the proposed changes.  At a Thursday meeting attended by cabinet ministers, the Tamil, Muslim and Left ministers reportedly thwarted the proposed changes being proceeded with at least until further study.  Disgustingly, but again unsurprisingly, the advocate of the new changes turned out to be GL Peiris, the law professor whose learning has become seed fallen on rock.  It is not clear whether the minority-Left alliance will hold together and attract the more sensible SLFPers to join ranks in permanently thwarting the proposed changes.

UNP’s challenge

But the regime at the brotherhood level has anticipated this internal revolt and has apparently started looking for new UNP crossovers to make up the required two-thirds majority.  The cynic might ask, why need a special majority in parliament, and why not let the Supreme Court say a simple majority is good enough as a matter of urgency.  So the challenge will once again be to Mr. Ranil Wickremasinghe: would he able to hold on to his troops, or let his party bleed more crossovers to the Rajapaksa regime?  He has so far shown himself to be hard on his internal critics but soft on the crossovers, thereby letting the regime get away and losing any control for himself over the political agenda.  The upshot is that even after nineteen years as the leader of the grand old party he is not the automatic front runner for the opposition in the next presidential election, but could be one of several ‘also-rans’.

His underwhelming constitutional proposals are not going to become the rallying point to mobilize opposition to the regime.  If past experience is anything to go by, the elections in 1970 and 1977 that led to major constitutional overhauls were not fought and won on a primarily constitutional mandate.  In fact, it is fair to say the reference to constitutional changes in the manifestos of the winning parties did not have resonance outside the Socialist Study Circle (1968-69) and the legal fraternity.  The elections were won and lost on issues that touched the people and constitutional changes came about as significant by-products.  It is true that the legacy of the First Republic (1972-1978) and the continuing stranglehold of the Second Republic has made the politics of constitution a never ending concern.  But it should not be assumed that the people are waiting to vote in an election for constitutional deliverance.

As well, midlife constitutional changes never come easy in any country.  In 1972 and 1977, there were two larger than life personalities, Colvin R de Silva and JR Jayewardene, who were able to finish, however problematically, what they started.  Forty years later, there is no shortage of people offering to change the constitution but there is no one in sight who, we can say with confidence, is capable of finishing the job.  Successful constitutions presuppose a broad consensus on normative and fundamental questions.  With so much acrimony over a measly Provincial Council system, there is no basis to expect a constitutional consensus in the near future.  Not that such a consensus is impossible to achieve in Sri Lanka.  Indeed, a pan-ethnic consensus remarkably emerged in the ten years between 1994 and 2004 in spite of the horrors of the war.  Rather than building on that consensus after the war, the Rajapaksa government deliberately destroyed it and is showing no sign of any interest in rebuilding it.